THAKUR KISHUN CHAND SINGH Vs. MUNSHI MAKUND SARUP

JUDGEMENT

(1.) This is an application under Order 47, Rule 1, Civil P.C., for a review of a judgment in Civil Revn. No. 25 of 1937, Mukand Sarup V/s. Krishna Chandra, reported in delivered by a Bench of this Court, consisting of Niamatullah J. and myself. In consequence of the retirement of Niamatullah J. on 7 December 1937, I alone heard the application as provided by Order 47, Rule 5, Civil P.C.

(2.) In order to appreciate the argument addressed to me in support of the application it is necessary to state a few facts that led to the revision. Syed Haidar Shah and two others executed a usufructuary mortgage deed in favour of M. Makund Sarup and Maulvi Ghafur Bakhsh on 17 December 1904 in respect of four villages. The share of Makund Sarup was three-fifth and of Ghafur Bakhsh two-fifth in the mortgage security. Subsequently Ghafur Bakhsh transferred his share to different persons and now one half of Ghafur Bakhsh's share is owned by Kishun Chand Singh and the remaining one half by other persons. Three-fourth of the equity of redemption was sold under various decrees from time to time and is now owned by Th. Kishun Chand Singh and some other persons who are no parties to this litigation. The result is that three-fifth of the mortgagee rights are now owned by Makund Sarup and the remaining two-fifth by Kishun Chand Singh and others. The equity of redemption to the extent of three-fourth is owned by Kishun Chand Singh and his brother. Thakur Manik Singh and the remaining one- fourth is still owned by the original mortgagors. On 21 October 1924 Kishun Chand Singh and others, on the one side, and M. Makund Sarup, on the other, entered into an agreement which provided : (1) that Makund Sarup would be put in possession of certain villages in lieu of his three-fifth share in the mortgagee rights from the beginning of 1333 F; (2) that Kishun Chand Singh and others would pay Rs. 25,000 to M. Makund Sarup as profits for 1332 F; and (3) that in case Kishun Chand Singh and others failed to deliver possession they would be liable to pay Rs. 4000 as damages.

(3.) It appears that the applicant Kishun Chand Singh and his co-sharers failed to deliver possession and pay the stipulated amount. Makund Sarup thereupon brought a suit in 1928 against Kishun Chand Singh and others for the enforcement of the terms agreed upon under the deed of 21 October 1924. This suit for several reasons which need not be commented upon is still pending. Kishun Chand Singh alone made an application under Section 4, Encumbered Estates Act, before the Collector and in the list of debts required to be filed by an applicant under the section he mentioned the mortgage of 1904 as he had acquired a fraction of the mortgagor's right as stated above. The Collector forwarded Kishun Chand Singh's application to the Special Judge and the learned Special Judge on the application of Kishun Chand Singh stayed the proceedings in the suit instituted by Makund Sarup for recovery of possession and mesne profits, etc. Makund Sarup made an application to the Special Judge for a review of his order but he was unsuccessful. Against the order of stay passed by the Special Judge Makund Sarup came to this Court in revision which was heard by Niamatullah J. and myself. Under our order dated 30 September 1937 we set aside the order of the Court below with respect to two reliefs : (1) for possession of immovable property; and (2) for recovery of mesne profits. The applicant has now made this application for a review of the aforesaid order.